On a Beef and a Side Beef

The so-called Rules and Procedure Committee (RPC) felt compelled to respond to Co-Investigating Judge Kasper-Ansermet’s cry of desperation published last week as ‘a note’. The RPC disagreed with Judge Kasper-Ansermet’s vitriol and dismissed his accusation of hostility on the part of the RPC.

What’s the beef here? Judge Kasper-Ansermet wanted the next plenary to amend the Internal Rules (IRs) and told the RPC how he wanted it done in substance and the RPC rejected his request. How bad is this and are there grounds for a beef (I am using street talk here because ‘a note’ is not a legal instrument which, as such, de-elevates this entire conversation to street talk; if the International Co-Investigating Judge had any statutory – forget statutory, any legal authority -- authority to produce such a document, I would have called by its proper statutory name (e.g. a disagreement/dispute motion) but in the absence of such it is just a beef)?

The IRs was a document concocted by this Court without any statutory authority to do so (I have discussed this time and again on various venues including this one). There was not a shred of paper or a legal reed to stand on when this Court dreamed up the idea of its own rules of procedure and evidence a la the ICTY and the ICTR (it was absolutely of no concern to this Court that the ICTs actually had a specific statutory mandate to create such rules; but such minor matters as a statutory mandate never got in this Court’s way of doing what its powers that be decided to do). For some time there the ECCC at least had the decency of feigning adherence to the legal basis of this tribunal (the Cambodian criminal law) until most recently when the Trial Chamber (TC) dispensed with the subterfuge and told us that the IRs were the main law of this Court (removing the veils the TC did not offer an explanation of how it had arrived at such a brazen conclusion but considering the latest few decisions of this Court, legal reasoning is not something this institution is motivated by; it is like the Fall of the House of Usher -- once it starts collapsing there is no reversing the process (for those familiar with the story the only thing to do is what the narrator did). The IRs are periodically reviewed by the judicial officers of the ECCC (who invented them to begin with) at meetings called ‘plenaries’ during which the judicial officers put on their legislative hats (the judicial officers of this Court feel that the constitutional separation of powers is a mere suggestion and that they can elect themselves as legislators (this is a good candidate for the Court’s legacy folder and I believe Cambodia needs more encouragement to circumvent the separation of powers who has been working out in this country so famously well: the Cambodian executive has always known it could ignore the separation of powers but it never knew it could turn itself into an electorate and re-elect itself to a public office) and write law. The RPC was elected by the judicial officers as a secretariat for the process. In the absence of a statutory mandate, the RPC ‘writes its own mandate’ insofar as there is “no objection raised at the Plenary as to [its] function” which in simple language means that it makes up rules as it goes along.

Thrown against this backdrop Judge Kasper-Ansermet’s grievance is essentially this: a committee with no statutory or otherwise mandate which serves as secretariat to a process for which there is no statutory or legal mandate of any kind and which is facially unconstitutional has rejected Judge Kasper-Ansermet’s request to amend the rules of procedure and evidence which were created and continue being amended without statutory mandate and in an unconstitutional manner did not give reasons for its rejection of Judge Kasper-Ansermet’s unconstitutional request which he had no authority to submit and the RPC had no authority to receive, consider or reply to because it has no authority to convene unless as a golf or bird-watching club (which should probably take place off the premises of this Court). Reduced to day-to-day scenarios, here is what happened: Judge Kasper-Ansermet did not like the fact that there was a left turn prohibited sign next to his house which he asked a person who stood on the side of the road and collected an illegal toll (allegedly for filling up a pothole in the absence of municipal services) to remove; this person refused and Judge Kasper-Ansermet demanded an explanation for the refusal. Boy, I wonder whom Judge Kasper-Ansermet has a side beef with. On the bright side of things, Judge Kasper-Ansermet’s reply to the RPC’s email shows that he still has keys to his office which is … a good thing one would suppose. A better thing would be writing a letter to the UN Legal Counsel entitled 'Time to Renegotiate the ECCC Agreement', as there is no amount of legislating from the bench in this Court that will alter the ECCC Agreement and the ECCC Law to what Judge Kasper-Ansermet wants and needs it to be to be able to function.